Your Right to a Union Representative in a “Fact-Finding Meeting”

If you’re asked to meet with your dean, or provost, or another college official, it could be for many reasons. Perhaps you’re going to be praised or honored for your work. Or maybe there’s a problem they want you to help solve. But in some cases, it’s for a discussion where you should have a union representative at your side.

Former John Jay grievance counselor Avi Bornstein says a union representative can help keep management from going on “fishing expeditions.”
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When a member of the PSC bargaining unit is called to an investigatory interview or a fact-finding meeting that it could be reasonably thought may eventually lead to disciplinary action, he or she has the right to demand and be provided with union representation. This right applies even when the member is not the subject of the investigation,

But in order to have a union representative present, you have to request it directly. Don’t expect management to inform you of these rights – it’s up to you to assert them. You can do so with confidence: management is required by law to honor this request once you make it.

Common Mistake

Unfortunately, many faculty or staff who find themselves in investigatory interviews that would warrant invoking these rights fail to do so. Instead, they try to go it alone, often to their detriment.

Suzan Moss of BCC.
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“If you ever get called to a meeting that you think might be investigatory or for fact-finding, ask the purpose of the meeting and then contact the union,” says Renée Lasher, PSC Coordinator of Contract Administration.

“Faculty will do all sorts of things before they realize ‘Hey, maybe I shouldn’t be my own lawyer,’” adds CCNY Grievance Counselor Carla Cappetti.

Your rights to union representation in such interviews are often referred to as “Weingarten Rights,” after a 1975 Supreme Court decision (Weingarten v. NLRB) that established the principle. At CUNY, these rights are guaranteed by New York State’s public-sector labor law (known as the “Taylor Law”).

‘More Confidence’

Having union representation is beneficial in a number of ways, according to campus grievance counselors. It allows the member to better prepare, and to have some idea what to expect in an interview. In addition, management may fail to disclose the full aim of an investigation, and a union representative may be able to help a member sort out what is really going on. During questioning, the union representative cannot answer questions for the member. But the representative can advise and consult with the member, and also can state objections to the meeting and to inappropriate questions. The Union’s presence can also alter the dynamic of the interview in intangible but significant ways.

Avi Bornstein, a former grievance counselor at John Jay College, says it can be important to have someone taking notes who is not also being questioned. When he accompanied a member in an investigatory meeting, Bornstein said, he would raise objections whenever necessary. But the simple fact of having a union representative present, he added, can also help keep a meeting from getting off track.

When a union rep is present, “administrators behave themselves, and it gives members more confidence that they are not isolated,” agrees BCC Grievance Counselor Simon Davis.

Of course, many meetings with college officials have nothing to do with investigation or discipline: most are part of the normal functioning of a university. But if a meeting’s purpose turns out to be different from what you expected, or if the nature of a meeting suddenly changes, it’s important to know that you can assert your right to a union representative at any time – before the meeting, when it starts, or in the middle. It is your right, and is guaranteed by law.

In the 1975 Supreme Court case that established Weingarten rights, a cashier at the Weingarten’s grocery chain was wrongly accused of theft. She asked for a union representative to be present, but her request was denied. Her flustered response to interrogation was then used to try to make her look guilty, though she was later exonerated.

Investigations can be deeply upsetting for union members who find their character called into question, their careers put at risk, or their colleagues accused of wrongdoing. Investigations on issues such as racial or sexual discrimination may leave a member feeling deeply offended or embarrassed, and the impulse to argue one’s own defense can be strong. While faculty members are accustomed to arguing on their own behalf, grievance counselors say, they need to recognize that in an investigatory meeting, they are not the expert – and they should ask for a union representative to be present.

A union representative can help keep management from going on “fishing expeditions” to put the member at a disadvantage, asking inappropriate questions that go far beyond the facts of the case or the behavior regulated by CUNY policies. For example, one grievance counselor cited an administration lawyer who asked a number of off-topic, personal questions, including whether a married faculty member had ever committed adultery. No union rep was present, and notes from this conversation went into the faculty member’s files. The counselor said that union representation can help correct course “if the conversation starts to go into people’s personal lives.”

The presence of a union representative can also help calm down members who are upset and might speak rashly. “If you feel like you’re going to lose your temper or blow your stack, it’s better to stop the situation,” says Suzan Moss a former grievance counselor at BCC.

Many PSC members are not aware of the due process protections they have or the importance of using them. “People carry on as if all will always be well but we know that sometimes isn’t the case,” says BCC’s Simon Davis. He says the campus chapter makes a point of discussing Weingarten rights each year at its annual meeting for new members. This year’s meeting was held in February and drew about 20 people, Davis said.

While members are often unaware of their Weingarten rights, Davis says his college’s administration has aggressively sought to curtail them, asserting in the past that he had no right to be present at an investigatory meeting or, if he was present, that he had no right to intervene. Davis has resisted these encroachments by firmly asserting his colleagues’ union rights.

“When the administration sees the union is serious, they tend to adapt a more diplomatic stance,” Davis says. “But, we have to be firm and vigilant.”

“Very often, it seems they are not aware [either],” Davis adds, though he says the new administration at his college has begun to show more respect for the Weingarten rights of PSC members. “The message is starting to get through, which would be good for everyone on campus.”

At BMCC, the PSC chapter includes information on Weingarten rights in its newsletter, at least once a semester, says Grievance Counselor Charlie Post. A decade ago, the BMCC administration insisted that faculty or professional staff facing an investigatory proceeding had no right to union representation.

Our Responsibility

“We schooled them on that,” Post says. “We made it very clear that we would file grievances if they did not abide by federal law.”

But while management often needs to be educated, enforcing due process starts with union members. As Avi Bornstein says, “As union members, we need to know and assert our rights. That includes directly asking for union representation in a fact-finding meeting.”